I took part in a day-long CLE this week in Charlotte, North Carolina, where the big-three of e-discovery all attended, United States Magistrate Judges Paul Grimm, John Facciola and Andrew Peck. It was great to see the Triumvirate in action, even though I did suffer some friendly abuse from their rulings in the mock court proceedings we set up. Of course, the other side’s repeated reference to me as Sanctions Losey did not help. Yes, I got to play the role of a plaintiff’s lawyer in a mock non-compete case. I’m still waiting for my contingency fee.

A CLE All About Rule 26(f) Conferences

The entire one day event was devoted to Rule 26(f) conferences, where we role-played with frequent Office-type out-takes to explain to the 175 in attendance what we were doing and why. We started with a conference where we did it the wrong way, and then we role-played it again, but this time we did it right (or at least better). This is the kind of in-depth, in-person CLE that I like, where a full day is devoted to a single topic. It was also terrific to have instant commentary by some of the best e-discovery judges in the country.

The local judges, attorneys, corporate counsel, vendors, and techs who took part in the event were very good too, and so was my old friend Sonya Sigler, now with SFL Data, who came all the way from San Francisco. The addition of top local Magistrate Judges David Keesler and Shiva Hodges, shown right, made the event even more interesting for the local Bar in attendance. (By the way, can you guess what judge’s learned hand is also shown in this picture?) These are really good judges who took the opportunity to learn from the Three Wise Men from out-of-town. Occasionally, they even seemed to listen to me! Charlotte is in good hands.

The defense team of local lawyers gave me a real run for the money. Of course, that same team got to dream up the convoluted fact scenario they pegged me with. They had us role-playing a law firm crazy enough to sue our small client’s former employer, a corporate giant, to seek a declaratory judgment on the invalidity of the non-compete they signed before leaving with big customers in tow. They also had us suing the Goliath corporation for trade disparagement, which gave me some fun with the scenario, as we looked for the key words “low dirt.” That was a term we learned the bad defendant was using to disparage our clients.

Yeah, I played with the facts too once I saw the set-up, and like any good plaintiff’s lawyer, waived my arms around a lot and demanded preservation of everything. I even tried crying once when describing my client’s persecution, but I’m a little out of practice in doing that. Still, the audience-students seemed to have a good time with the role-playing and interactions. I certainly got more than my usual share of laughs, and questions, which is how I usually judge the success of my performance-teaching. The mock trial type scenario, if done right, can be a lot more entertaining than just listening to a series of talking heads.

Search, ethics, competence, preservation, rules, privileges, claw-backs, and most every other e-discovery topic you can imagine came up in the course of the mock 26(f) conferences and five judge commentary. As you would expect with Judges Peck, Facciola and Grim in attendance, the hot topic of today, predictive coding, was also discussed at some length.

It was also great to hear all of the triumvirate opine on proportionality and how to control costs. As you know from my last blog, Bottom Line Driven Proportional Review, cost control is my current mission, my way of helping Superman in the never-ending battle for truth, justice and the American way.

The CLE Plan

Below is the agenda of the event sponsored by Nova Office, which other vendors might want to look at as an example of the right way to do a CLE. Of course, we deviated somewhat from the script, and went with the flow, but still, the outline may be of some assistance to future CLE organizers. The event itself was called e-discovery judges in charlotte:

Continental Breakfast 7 AM – 8 AM

Introduction to panel

Introduction to case (10 minutes)

Defendant reacts to receiving complaint (15 minutes)

Conversations between counsel (40 minutes)

Emergency motion (15 minutes) (we skipped this – no time)

Judicial reaction (as long as they want!)

Key Words (10 minutes)

Coffee Break (15 minutes)

Panel discussion (45 minute)

A better way (60 minutes)

Lunch Break (30 minutes)

Meet & Confer FRCP 26(f) (120 minutes)

Coffee Break (15 minutes)

Judges Conference FRCP 16(b) (45 minutes)

Open Discussion with Magistrate Judges (60 minutes)

As an interesting twist, they had a court reporter transcribe the whole event, instead of a more typical video. I’m told it will be posted online in about ten days where it will be freely available to all. Try this address in ten days: www.novaoffice.net/assets/pdf/cle_transcript.pdf

Aside from the Big Three judges, the local judges, Sonya Sigler, and myself, we had a large team of mock 26(f) players, listed below. The opposing counsel who lead the defense team, Jill Griset and Kate Maynard, were worthy adversaries. I hope that my sparring with them helped prepare me for my next debate, which is only against one person. But, that one person is no mere mortal, it is none other than the world-famous Craig Ball, the long reigning champion of e-discovery debates.

The Coming Battle at Legal Tech

Yes. You heard it right, Losey v. Ball. It will be moderated by an esteemed member of the triumvirate, Judge Andrew Peck. I’m told Judge Peck has already used Sherlockian code to predict my loss. Or was it my irrelevance? Not sure. Either way, he seems to think my likely defeat is pretty funny. Judge Peck knows all of our moves, Ball and me. Following the methods of his hero and mine, Sherlock Holmes, he has played out all of the possible permutations in his mind deduced my inevitable defeat. Apparently my only chance of defeating Moriarty requires a suicide jump into the Falls. (Or does it?) Speaking of Sherlock Holmes, have you seen the new movie, A Game of Shadows? Judge Peck and I both say to ignore the critics and check it out.

The debate, some would say sacrifice of the newcomer (me), takes place at Legal Tech on January 31st, 4:00-5:00 pm, at the Sutton Center, 2nd floor. Apparently the very special Master of e-discovery, a/k/a Craig D. Ball, has never been beaten. In fact, most leave the field of law altogether after any attempt, or at least escape to the land of no-debates and no-arguments, just friendly, cooperative dialogue. I’ve heard it’s located somewhere in Arizona.

The legal rumble in New York is sponsored by BIA, Inc. I bet they are still chuckling behind the scenes at finally finding a patsy to take up the challenge of a battle against Ball. I later found out that the first twenty people they asked before me all came up with good excuses to say no, like wanting to save their reputation and avoid public humiliation. Me, I didn’t know any better, and succumbed to their flattery and said yes. (In fairness, BIA is very good at flattery, right Mark?) Only later did I understand the meaning of the evil laughter that followed my assent.

Please show up and cheer me on in the Losey v. Ball debate. I need your moral support as I attempt to do battle with the long-reigning Emperor of e-discovery. At the very least, you can help me pick up the pieces after my thrashing and buy me a drink. If only I knew how to make ESI emit from my hands like Craig does, then I might have a chance. Oh well, at least the defense Bar is with me, even if the force and forensic freaks are not.

The Key Players in Charlotte

In addition to the Big Three of Peck, Facciola and Grimm, here are the key players in my warm up battle in Charlotte last week. You will notice a lot of heavy hitters here from a variety of backgrounds. That is another key ingredient for an event like this.

A final special thanks goes out to Doug Moore, of FSO Outsourcing, now hailing from New York City (shown second to left, just behind someone’s big head). Doug did most of the heavy lifting for event planing. He also braved a rainy night in Charlotte to go outside and help me find the restaurant, The King’s Kitchen, at 129 West Trade Street in Charlotte. That is where all of the speakers ate the night before. I highly recommend this restaurant. King’s Kitchen is both a non-profit foundation and restaurant that serves good old-fashioned southern cooking with profits going to help feed the homeless. Can anyone guess Judge Grimm’s favorite food at this restaurant? No, it was not a Happy Meal.

Leave your comments below with guesses on Grimm’s favorite food and the name of the judge whose learned hand graced the second photo from the top. The winners get a free beer or cup of coffee at Legal Tech. (On me, or whatever vendor happens to have an open tab handy, which, of course, is the main reason most of us go to Legal Tech.)

Any debating tips for my battle with Ball would also be appreciated. I already owe him one steak dinner for our prior debate over Phillip M. Adams & Associates, L.L.C., v. Dell, Inc. I said it was a bad decision and would be reversed. It wasn’t. So, I lost the bet. I understand the Legal Tech debate will include the infamous Pippins v. KPG, LLP case. Once again, Master Ball says the decision is sound and will be affirmed. Once again, I predict reversal of this bad opinion. Am I right? What do you think?

Ralph – once again you make it sound so exciting (as it actually was). I enjoyed serving as the eDiscovery expert for your team! Just remember: A multi-modal search approach (not just keyword search) is your friend and that doesn’t mean limiting your search to 5 key word terms either! I’m guessing the hand was Judge Peck. I’m guessing Judge Grimm’s favorite food was the pot roast :) Enjoy your spar with Craig Ball and Christian Lawrence will have to buy you a drink on SFL Data because I’ll be missing LegalTech this time around!

Before you drown in Ralph’s crocodile tears, note how his imagery gives himself away. See how he puts his eyeglasses on Superman (for heaven’s sake), uses the hideous Emperor Palpatine for me and casts himself as the brilliant Sherlock to my evil Moriarty? “Forensic freaks,” indeed!

What’s the matter Ralph? You couldn’t fashion an image of me strangling a puppy?

You see how he is threatening me? Geesh. Craig knows I promised to never publish that puppy picture, and of course, I’ll keep my promise (despite his taunts). The poor little thing was tied to the top of a car as I recall. But he did wash him off. Or was that someone else?

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About the Blogger

Ralph Losey is a practicing attorney and shareholder in a national law firm with 50+ offices and over 800 lawyers where he is in charge of Electronic Discovery. All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.

Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over a million words on e-discovery and tech-law subjects, including five books. He is also the founder of Electronic Discovery Best Practices, and the founder and CEO of e-Discovery TeamTraining, an online education program that arose out of his five years as an adjunct professor teaching e-Discovery and Evidence at the UF School of Law. Ralph is also publisher and principle author of this blog and many other instructional websites.

Ralph has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using artificial intelligence, and also in cybersecurity. Ralph devotes about a month per year on scientific research and experiments in the field of legal search. He is a participant in the 2015 TREC Recall Track and prior to that participated in the EDI Oracle research.

Ralph has been involved with computers, software, legal hacking, and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in two categories: Commercial Litigation; and, E-Discovery and Information Management Law, along with other awards. His full biography may be found at RalphLosey.com.

Ralph is also the proud father of two children, Eva Grossman, and Adam Losey, an e-discovery lawyer (married to another e-discovery lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.

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Legal Robots Are Coming!

Sedona Principles, 2nd Ed.

1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.

2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.

3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.

4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.

5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.

6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.

8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.

9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or
produce deleted, shadowed, fragmented, or residual electronically stored information.

10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.

11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.

12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.

13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.

14. Sanctions, including spoliation ﬁndings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.